Judge: Frank M. Tavelman, Case: 23BBCV01670, Date: 2023-12-08 Tentative Ruling

Case Number: 23BBCV01670    Hearing Date: March 29, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Deijae Malik Johnson (Plaintiff) brings this action against Cloud 9 Hookah Lounge, Inc. (Cloud9), Burbank Holdings 2000 LLC (Burbank Holdings), 17 & Christian Doe (collectively Defendants). Plaintiff alleges that he was assaulted on Cloud9’s premises by a club promoter, Christian Doe. Plaintiff alleges he sustained serious injuries from the altercation.

Burbank Holdings now demurrers to Plaintiff’s First Amended Complaint (FAC); specifically Plaintiff’s fourth cause of action for Negligence, fifth cause of action for Premises Liability, and sixth cause of action for Negligent Hiring, Training, Supervision, and Retention of Employee. Burbank Holdings first demurs on grounds that the pleadings are fatally uncertain. In the alternative, Burbank Holdings demurs on grounds that each cause of action fails to allege sufficient facts.  

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.                 MERITS

Meet and Confer & Objections

C.C.P. §§ 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review the Court finds the meet and confer requirements were met. (Kobi Decl. ¶¶ 3-4.)

Plaintiff argues Burbank Holdings unfairly deleted Plaintiff’s response to the meet and confer correspondence in their Exhibit A. The Court finds the correspondence attached was sufficient to establish that a good faith meet and confer effort was made, which is what the correspondence was offered to show.

Further, Plaintiff’s objections to the exhibits attached to the meet and confer declaration are OVERRULED. Plaintiff objects to each of these on grounds of “Improper Judicial Notice” The Court is unaware of any statute or court rule which necessitates that meet and confer efforts be supported by judicially noticed facts. It is routine practice that meet and confer efforts are shown through attorney declaration and supporting exhibits.

The FAC Allegations

Plaintiff alleges that Burbank Holdings was the owner of the premises at the time of the attack. (FAC ¶ 5.) Plaintiff further alleges that Christian Doe was a club promoter. (FAC ¶ 6.) Plaintiff does not allege that Christian Doe was an employee of Burbank Holdings at any point.

Plaintiff allegations through the FAC group each defendant together in their allegedly tortious actions. Plaintiff alleges that all Defendants, including Burbank Holdings, had knowledge of the altercation and did nothing to help Plaintiff. (FAC ¶ 11.) Plaintiff alleges each Defendant allowed Christian Doe to remain on the premises, and that each defendant failed to provide reasonable security for the premises. (FAC ¶¶ 12, 13.)

Demurrer for Uncertainty

A demurrer to a pleading lies where the pleading is uncertain, ambiguous, or unintelligible. (C.C.P. § 430.10 (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Where a complaint is sufficient to state a cause of action and to apprise defendant of issues he is to meet, it is not properly subject to a special demurrer for uncertainty. (See Id.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 643 [“A special demurrer [for uncertainty] should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet”].)

Burbank Holdings argues Plaintiff’s failure to separate the allegations as to each defendant constitutes a fatally uncertain pleading. The Court does not find this argument persuasive. While the Court understands that Plaintiff’s grouping of the Defendants has created considerable ambiguity in the FAC, it does not render the FAC so unintelligible that Burbank Holdings cannot respond. A demurrer for uncertainty is appropriate where the pleading is so poorly written that the defendant cannot reasonably respond. (C.C.P. § 430.10(f); Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty is a disfavored ground for sustaining a demurrer. (Id.)

Burbank Holding’s argument as to why each cause of action is uncertain is that Plaintiff does not specify the duty owed by Burbank Holdings. Whether Plaintiff has adequately asserted a duty owed by Burbank Holdings is an argument which speaks to the sufficiency of the allegations and not a demurrer for uncertainty. Plaintiff has asserted that Burbank Holdings owed him a duty not to negligently cause him harm and injury, to call law enforcement prior to the matter escalating, and to take reasonable care in hiring, training, supervising and retaining their employees and agents at the subject premises. (FAC ¶¶ 29, 37, 43.) Whether Plaintiff has sufficiently alleged facts supporting these duties will be addressed below, but the question is not one of uncertainty.

Fourth COA – Negligence – Sustained with Leave to Amend

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Plaintiff alleges that Burbank Holdings owed him a duty not to negligently cause him harm and injury. (FAC ¶ 29.) Plaintiff further alleges that Burbank Holdings breached that duty by failing to provide reasonable security measures which would have prevented the attack. (Id.) Although Plaintiff alleges that Burbank Holdings owed him a duty not to cause him harm, Plaintiff does not allege that Burbank Holdings directly caused him harm. Instead, Plaintiff’s allegations of negligence speak to Burbank Holding’s alleged failure to stop the assault committed by Chrisitan Doe.

“Landowners under California law are required to maintain land in their possession and control in a reasonably safe condition.” (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 663, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) “One well-established limit is that there is no duty to act to protect others from the conduct of third parties.” (Williams supra, 37 Cal.App.5th at 663 [internal quotation marks omitted].)

There exists an exception to this limit where a party has shown a special relationship between the injured party and the landowner. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531.) “Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees. In addition, such “special relationships triggering a duty to protect another from foreseeable injury caused by a third party have been found in other contexts, including those of (i) common carriers and passengers, (ii) innkeepers and their guests, and (iii) mental health professionals and their patients.” (Id. [internal quotation marks and citations omitted].)

Liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act. (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202.) In determining the scope of property owner’s duty to protect from third-party harm the Court looks at “…the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.” (Ann M. supra, 6 Cal.4th 666 at 675.)

Here, Plaintiff seeks to hold Burbank Holdings liable for the tortious act Christian Doe. The FAC does not allege that Burbank Holdings employed Doe. Nor does the FAC allege a special relationship existed between Burbank Holdings and Plaintiff. The only facts pled in the FAC as to Burbank Holdings specifically indicate that it was merely the landowner of the subject premises rented by Cloud9. The FAC does not allege that Burbank Holdings held the property out to the public or acted in any way that would create a special relationship between themselves and Plaintiff. As such, Plaintiff has pled no facts which support his allegation that Burbank Holdings owed him a duty to protect from the assault by Christian Doe.

Further, Plaintiff has not sufficiently pled facts as to the foreseeability of the event. The FAC contains no factual allegations supporting the conclusory allegation that Burbank Holding had knowledge of the altercation. Nor does the FAC contain any allegations as to Burbank Holding’s knowledge of any prior incidents of third-party criminal conduct.

Accordingly, the demurrer to this cause of action is SUSTAINED with leave to amend.

Fifth COA – Premises Liability – Sustained with Leave to Amend

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.)

Plaintiff’s allegations here as to duty and breach are identical to those in his cause of action for negligence. As Plaintiff has not pleaded allegations sufficient to support his claim that Burbank Holdings owed him a duty, his cause of action for Premises Liability is also subject to demurrer on these grounds.

As with the previous cause of action, the demurrer to this cause of action is SUSTAINED with leave to amend.

Sixth COA – Negligent Hiring etc. – Sustained with Leave to Amend

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

Here, the FAC is completely silent as to whether Burbank Holdings employed Christian Doe. Plaintiff only makes general aversions to Christian Doe’s “hiring and involvement” at Cloud9 Hookah Lounge. At no point does the FAC allege that Burbank Holdings was Christian Doe’s employer.

Accordingly, the demurrer to this cause of action is SUSTAINED leave to amend.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Burbank Holdings 2000 LLC’s Demurrer came on regularly for hearing on March 29, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER TO THE FOURTH, FIFTH, AND SIXTH CAUSES OF ACTION FOR FAILURE TO ALLEGE SUFFICIENT FACTS IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

UNLESS ALL PARTIES WAIVE NOTICE, BURBANK HOLDINGS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  March 29, 2024                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles